Hockaday v. Lawrence

• Decision Date: 18 October 1911
• Court: North Carolina Supreme Court
• Parties: HOCKADAY v. LAWRENCE et al.

72 S.E. 387

156 N.C. 319

HOCKADAY

v.LAWRENCE et al.

Supreme Court of North Carolina.

Oct. 18, 1911.

1. Jury (§ 28^*)—Right to Trial by Jury-Waiver—Statutory Provisions.

Revisal 1905, § 540, which prescribes that the right to a trial by jury may be waived by failing to appear at the trial, by written consent filed with the clerk, or by oral consent entered in the minutes, excludes other modes of waiver.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 176-196; Dec. Dig. § 28.*]

2. Costs (§ 2*)—Nature and Grounds of Costs.

Items of cost as they arise in an action are in no legal sense the subject of the litigation, and arise only incidently in the progress of the cause.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 4, 26; Dec. Dig. § 2.*]

3. Insane Persons (§ 103*)—Actions—Next Friend—Costs.

In an action by an insane person by his next friend appointed by the court, the next friend, unless guilty of bad faith or mismanagement, is not liable to costs.

[Ed. Note.—For other cases, see Insane Persons, Cent. Dig. § 187; Dec. Dig. § 103.*]

4. Jury (§ 12*)—Action by Next Friend-Death of Plaintiff—Issue of Fact.

An action was brought by an insane person by his next friend appointed by the court, and, after the decease of the insane person, his executor, made a party to the action by order of the court, answered, alleging that the action was not for the best interest of the estate of the decedent, and should be dismissed at the cost of the plaintiff and the surety on his prosecution bond. Held, that the answer raised no issue of fact as to the next friend's bad faith or mismanagement, so as to entitle the executor to a trial by jury.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 27-34; Dec. Dig. § 12.*]

On petition of defendant Sikes to rehear, before Supreme Court. Dismissed.

Action by J. M. Hockaday, by his next friend, against C. M. Lawrence, in which, after Hockaday's death, his devisees and his executor, G. T. Sikes, were made parties by order of the court. From an order taxing costs against the executor, he appealed. This case was decided at the last term, and is now before the court upon a petition to rehear.

The following facts appear In the record: On the 4th day of February, 1907, W. N Fuller filed an application before the clerk of the superior court of Granville county for the appointment of a next friend for James M. Hockaday, who had been found by a jury to be non compos mentis, and on the same day H. C. Hockaday was appointed such next friend, and instituted this action for the purpose of setting aside certain deeds, executed by the said James M. Hockaday to the defendant, which purported to convey the timber on certain lands, and also to restrain the defendant from cutting said timber. A restraining order was issued in the action; and after notice, and upon a full hearing, the same was continued to the hearing. After the institution of the action, a guardian was appointed for the said James M. Hockaday, who was made a party, but who took no active part in the prosecution of the action. In 1908 or 1909 James M. Hockaday died, leaving a will, and his executor and devisees were made parties to the action by order of court, and they filed answers in which they say "that in their opinion the above-entitled action is not for the best interest of the estate of J. M. Hockaday, and should not be prosecuted further." A caveat was filed to said will, upon the ground that the testator did not have sufficient mental capacity to make a will and the will was sustained. At April term, 1910, of the superior court, an order was entered in the action dissolving the restraining order, and thereupon an arbitration was entered into between the defendant and the sureties on the prosecution bond, and an award was rendered in favor of the defendant for $82, which was paid. The cause again came on for hearing at November term, 1910, of said court. Both parties tendered judgment, the principal difference between them being as to costs, the defendant asking that judgment for costs be rendered against the next friend and the sureties on the prosecution bond, and the sureties asking that it be rendered against the executor of James M. Hockaday. His honor found as a fact that the action was instituted for the benefit of the estate of said Hockaday, and taxed the costs against the executor, and the executor excepted and appealed.

Graham & Devin, for appellant.

A. A. Hicks and T. T. Hicks, for appellees.

ALLEN, J. The executor insists that he raised an issue of fact in his answer by alleging "that he is of opinion that this action is not for the best interest of the estate of James M. Hockaday, and should not be prosecuted further, but should be dismissed at the cost of plaintiff and the surety on his prosecution bond, " and that as he has not waived the right in the mode prescribed by statute, he is entitled to have this issue passed on by a jury.

It is true, as contended by the defendant, that Rev. § 540, prescribes only three ways in which a trial by jury may be waived: (1) By failing to appear at the trial.

(2) By written consent filed with the clerk.

(3) By oral consent entered in the minutes, and that there is no such waiver on this record. The statute was construed to...